Supervisors Foul, Sexually Laden Comments Not Sexual Harassment

June 16, 2011  |  From HRCalifornia Extra

A California court of appeal found that clearly vulgar sexual language did not amount to same-sex harassment because the conduct was not motivated by sexual interest or animus. Kelley v. The Conco Companies, No. A126865 (1st Dist. June 6, 2011).

Patrick Kelley was an apprentice ironworker employed by The Conco Companies. Kelley’s supervisor, David Seaman, launched into a tirade against Kelley that was loaded with sexually explicit comments and obscene language. During the tirade, Seaman repeatedly called Kelley profane slurs and told Kelley he wanted to perform various sodomizing acts on him. Seaman told Kelley that sexual intercourse with him would be better than with Kelley’s "old lady." Seaman also made comments about Kelley’s body and that Kelley would "look good in little girl’s clothes." A co-worker, who was also present, told Kelley he was going to make Kelley perform sexual acts on Seaman.

The Kelley decision is important because it limits the scope of employer liability when faced with a harassment lawsuit. But if this sort of conduct takes place, you still have a problem in your workplace regardless of whether you get sued.

Crude Language Common

Despite Seaman’s remarks to his male coworker, the evidence showed that he was not sexually interested in men. The comments, according to Seaman, were made "jokingly and in anger." The evidence showed that sexually taunting comments, including gay innuendo, profanities and rude, insulting behavior, were common place in the work environment.

Kelley complained to management about the tirade, and Seaman apologized. For several months after the event, co-workers at Conco made similar sexually offensive comments to him and also called him a "narc" and a "snitch" for complaining about Seaman’s conduct. Kelley‘s employer changed his worksite on several occasions to separate him from the harassers, but the conduct persisted. Kelley at one point was told "that’s just the way these guys are." His union later suspended Kelley from its apprenticeship program. After the suspension expired, he was never rehired by Conco and had difficulty finding work at other companies. The union told him it was because of his complaint at Conco.

Sexual Harassment Laws Not Civility Codes

Sexual harassment is prohibited under both state and federal law, including harassment between members of the same sex. In this situation, why was this language not considered sexually harassing?

The law states that the harassment must be because of sex. The fact that harassing comments have sexual content alone is not sufficient. As the California Supreme Court has noted in the past, the focus is on preventing "disparate treatment of an employee on the basis of sex — not the mere discussion of sex or use of vulgar language." Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264 (2006). Both federal and state courts have cautioned that sexual harassment law should not be turned into a "civility code," and that the law does not protect employees from all verbal or physical harassment in the workplace.

The issue of whether harassment is because of sex is often clear given that many sexual harassment cases involve sexual propositions. In the instance of same-sex harassment, if the harasser is sexually propositioning the employee, the line is just as clear. However, in instances of alleged same-sex harassment where the harasser is actually heterosexual, the complaining employee will have to show evidence that that the conduct constituted discrimination because of the employee’s sex, not just that the conduct had a sexual tinge.

For example, if a woman is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is hostile toward women in the workplace, this could constitute harassment on the basis of sex even in the absence of sexual interest. This has been the standard analysis since the United States Supreme Court decision in Onacle v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998).

Comments Made Out of Anger, Not Sexual Desire

Though Seaman’s comments in this case were clearly "graphic, vulgar and sexually explicit," the court found that there was no evidence that they were motivated by sexual interest, but were instead made out of personal anger toward Kelley. Even though Seaman made literal statements about performing sexual acts with Kelley, Seaman’s statements were not motivated by sexual desire. The court also said that Seaman’s use of the word "b----" toward Kelley did not constitute harassment because of sex. Though the term is offensive, it did not, in this context, demonstrate either sexual interest or hostility toward Kelley because he is a male.

The Kelley court disagreed with another California decision, Singleton v. United States Gypsum Co., 140 Cal.App.4th 1547 (2006). The Singleton court ruled that an employer could be held liable for workplace bullying, insults and sexually explicit gestures and comment made by male co-workers to another male co-worker, even where there was no evidence of sexual desire.

The Singleton court found that the harassers intended to attack Singleton’s masculinity and heterosexual identity and treated him differently than they would a woman. Given the conflict between the two cases, the question remains whether Kelley will remain viable over time.

Kelley was allowed to proceed with his retaliation claim. The court reasoned that Kelley complained about conduct that he, in good faith, believed violated California’s Fair Employment and Housing Act. After that complaint, he faced a barrage of harassment and threats by co-workers that explicitly referred to his prior complaint against Seaman. Conco could be liable for that conduct if it knew or should have known and either participated in and encouraged the conduct or failed to take reasonable action to stop it.

Case Does Not Change How Employers Should Handle Crude Conduct

Does this case change how employers should handle vulgar, foul and sexual comments at work? The easy answer to that is, "No." Kelley benefits employers in that it limits the scope of employer liability when faced with a lawsuit. But the case should not change employer policies and practices. If supervisors or co-workers call employees offensive, vulgar names, you have a problem in your workplace. It does not matter whether you get sued and eventually win. That type of conduct leads to poor morale, decreased productivity and diminished employee retention. Further, the cost of a lawsuit alone, regardless of whether you eventually win, is not worth tolerating such conduct.

Best Practices

  • Inform employees that they can be disciplined for unprofessional and disrespectful behavior at work, not just conduct that crosses the legal line
  • Regularly monitor your workplace culture
  • Pay attention to employees' day-to-day banter and whether your supervisors tolerate crude conduct
  • Train supervisors to correct disruptive behavior in the workplace
  • Consider enacting disciplinary policies that cover bullying behavior
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